11 Ala. 35 | Ala. | 1847
Conceding that in an action for a breach of a promise to marry a female plaintiff without reference to time, she should alledge in her declaration an offer to marry the defendant, and still we think the first count is good. It alledges that the defendant had married another woman. This certainly .excused the plaintiff from reminding him of their engagement, and again offering him her hand. He had placed himself in such a condition as made it impossible for him to accept such a proposal, and the law did not impose upon her the indelicate task, in order to impair the wrong she had suffered, of proposing that which the defendant was under the necessity of rejecting. The allegation then, excuses an offer by the plaintiff to perform her promise, and is quite equivalent to it.
In Johnston vs. Caulkins, 1 Johns. Cas. 116, which was an action for a breach of promise of marriage, it was held that where the defendant had absconded, and thus put it out of the plaintiff’s power to offer to consummate the contract, she was excused from making the offer.
The second count is alike unexceptionable. It states a
Both counts substantially conform to the precedents in 2 Chitty, and certainly the cases cited by the defendant’s counsel from the Kentucky Reports, do not oppose, but so far as applicable, sustain our views. The judgment is reversed, and the cause remanded.